Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Excelior Pty Ltd
[2012] FMCA 621
•18 July 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING & ALLIED SERVICES UNION OF AUSTRALIA v EXCELIOR PTY LTD | [2012] FMCA 621 |
| INDUSTRIAL LAW – National Training Wage Schedule – whether time in training is time at work. INDUSTRIAL LAW – Interpretation of awards – application of Acts Interpretation Act 1901. WORDS AND PHRASES – “In” – “in attending”. |
| Fair Work Act 2009, ss.12, 134, 167 Acts Interpretation Act 1901, ss.15AA, 15AB, 46 |
| City of Wanneroo v Holmes (1989) 30 IR 362 Kucks v CSR Ltd (1996) 66 IR 182 Construction, Forestry, Mining & Energy Union (Construction & General Division) v Master Builders Group Training Scheme Inc (2007) 168 IR 164 Kenoss Contractors Pty Ltd v Warren (2005) 147 IR 390 Pickard v John Heine & Son Ltd (1924) 35 CLR 1 Ansett Australia Ltd v Australian Licenced Aircraft Engineers’ Association [2003] FCAFC 209 United Firefighters’ Union of Australia v Metropolitan Fire and Emergency Services Board (2006) 152 IR 106 Bell v Gillen Motors Pty Ltd (1989) 24 FCR 77 Warramunda Village Inc v Pryde (2002) 116 FCR 58 Byrne v Australian AirlinesLtd (1995) 185 CLR 410 R v L (1994) 49 FCR 534 Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 Williams v Amalgamated Anthracite Collieries, Ltd (1932) 25 BWCC 634 |
| Applicant: | COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING & ALLIED SERVICES UNION OF AUSTRALIA |
| Respondent: | EXCELIOR PTY LTD |
| File Number: | SYG 935 of 2011 |
| Judgment of: | Cameron FM |
| Hearing date: | 15 September 2011 |
| Date of Last Submission: | 31 October 2011 |
| Delivered at: | Sydney |
| Delivered on: | 18 July 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr R. Reitano |
| Solicitors for the Applicant: | Slater & Gordon |
| Counsel for the Respondent: | Mr I. Latham |
| Solicitor for the Respondent: | Mr R. Marasco |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 935 of 2011
| COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING & ALLIED SERVICES UNION OF AUSTRALIA |
Applicant
And
| EXCELIOR PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
On 10 May 2011 the applicant (“CEPU”) commenced proceedings against the respondent (“Excelior”) under the Fair Work Act 2009 (“FWA”) alleging that Excelior had breached the terms of the Telecommunications Services Award 2010 (“Award”) in respect of one of its employees, Sean Butterworth, who was employed as a trainee to complete the requirements for a Certificate II in Telecommunications. The CEPU alleges that in May and October 2010 Mr Butterworth was sent by Excelior from his usual place of work in Albury to undertake training in Lambton, a suburb of Newcastle. The CEPU alleges that, in the circumstances, Mr Butterworth was entitled under the Award to the payment of various expenses and allowances for travel and accommodation. The CEPU alleges that in breach of the Award Excelior failed to make these payments to Mr Butterworth.
Excelior disputed the CEPU’s construction of the Award and denied that it operated to provide trainees such as Mr Butterworth with pay for travelling time or with payments for expenses incurred when staying away from home for the purposes of training. A challenge to the CEPU’s entitlement to bring these proceedings was not pressed. Similarly, a contention that Schedule E to the Award, entitled “National Training Wage”, only applied to certain Australian Qualification Framework Certificate Level IV traineeships was not pressed.
The CEPU seeks a declaration that Excelior has contravened the Award in respect of Mr Butterworth’s employment, the imposition of a pecuniary penalty, an order that Excelior pay Mr Butterworth his claimed entitlements and interest on the latter amount.
For the reasons which follow the application will be dismissed.
Relevant provisions
Clause 17.1 of the Award relevantly provides:
(e)Transfers, travelling and working away from usual place of work
(i) Distant work/travelling time payment
· All reasonable out-of-pocket expenses incurred in connection with the employer’s business authorised by the employer and properly paid by the employee will be reimbursed by the employer.
· Except as provided elsewhere in this award, an employee directed by the employer to travel in the employee’s own time to transact company business will be paid travelling time and all expenses incurred while travelling in accordance with clause 17.1(e)(ii). Further, an employee sent by their employer from their usual locality to another and required to remain away from their usual residence will be paid expenses while so absent from their usual locality.
· An employee is not entitled to be paid for travelling in the employee’s accustomed workplace or territory. In circumstances where an employee is required to work away from the accustomed workplace or territory and travels in the employee’s own time to reach such place, the employee will be entitled to be paid for the time reasonably spent in travelling to such place in excess of that which would be spent travelling from home to the accustomed workplace or boundary of the accustomed territory.
(ii) Payment for travelling
· The amount of pay for an employee travelling outside of ordinary hours will be their ordinary rate of pay.
· The travelling time to be paid will be 12 maximum hours out of every 24 hours, or where a sleeping berth is provided by the employer for all night travel, eight hours out of every 24.
(iii) Expenses
Expenses for the purposes of clause 17.1(e)(i) means:
· All fares reasonably incurred at the following standard:
Rail: first class (including the provision of a sleeping berth where available for all night travel);
Air: economy class for all journeys.
·Reasonable expenses incurred while travelling including $11.39 for each meal taken (except where the cost of the meal is included in the fare).
·Reimbursement of the cost incurred for lodging of at least reasonable hotel/motel standard.
Schedule E to the Award relevantly provides:
E.3Coverage
E.3.1Subject to clauses E.3.2 to E.3.6 of this schedule, this schedule applies in respect of an employee covered by this award who is undertaking a traineeship whose training package and AQF certificate level is allocated to a wage level by Appendix E1 to this schedule or by clause E.5.4 of this schedule.
E.3.2This schedule only applies to AQF Certificate Level IV traineeships for which a relevant AQF Certificate Level III traineeship is listed in Appendix E1 to this schedule.
…
E.3.5Where the terms and conditions of this schedule conflict with other terms and conditions of this award dealing with traineeships, the other terms and conditions of this award prevail.
…
E.6Employment conditions
E.6.1A trainee undertaking a school-based traineeship may, with the agreement of the trainee, be paid an additional loading of 25% on all ordinary hours worked instead of paid annual leave, paid personal/carer’s leave and paid absence on public holidays, provided that where the trainee works on a public holiday then the public holiday provisions of this award apply.
E.6.2A trainee is entitled to be released from work without loss of continuity of employment and to payment of the appropriate wages to attend any training and assessment specified in, or associated with, the training contract.
E.6.3Time spent by a trainee, other than a trainee undertaking a school-based traineeship, in attending any training and assessment specified in, or associated with, the training contract is to be regarded as time worked for the employer for the purposes of calculating the trainee’s wages and determining the trainee’s employment conditions.
E.6.4Subject to clause E.3.5 of this schedule, all other terms and conditions of this award apply to a trainee unless specifically varied by this schedule.
Allegations
An amended statement of claim was filed by the CEPU on 3 June 2011.
The CEPU alleges that Mr Butterworth was employed by Excelior on 3 May 2010 as a trainee in the telecommunications services industry. It alleges that at all relevant times Excelior was bound by the Award, including schedule E, in respect of Mr Butterworth’s employment.
The CEPU alleges that between 2 and 23 May 2010 and 10 and 27 October 2010, Excelior sent Mr Butterworth from his usual place of work in Albury to Lambton to undertake training specified in his training contract with Excelior. The CEPU alleges that during these periods Mr Butterworth was entitled, pursuant to cl.17.1(e) of the Award, to be paid all reasonable expenses incurred whilst travelling and working away from his usual place of work. With respect to the May 2010 training period, the CEPU alleges that:
a)using his own vehicle, Mr Butterworth travelled 1,520km between Albury and Lambton for which he was entitled to be reimbursed a reasonable amount, said to be $0.74 per kilometre or $1,124.80 in total;
b)Mr Butterworth was entitled to reimbursement for sixty-six meals at the rate of $11.68 per meal, being a total of $770.88;
c)Mr Butterworth was entitled to reimbursement of his accommodation expenses, a reasonable amount being said to be $120 per night for twenty-one nights or $2,520 in total; and
d)Mr Butterworth was entitled to a travelling allowance for time spent travelling between Albury and Lambton to the extent that it exceeded the time he would have spent travelling from home to his usual place of work, being twenty hours at his ordinary rate of pay of $13.18 per hour or $263.60 in total.
With respect to the October training period, the CEPU alleges that:
a)using his own vehicle, Mr Butterworth travelled 1,520km between Albury and Lambton and was entitled to be reimbursed for the cost of travel. A reasonable amount for the expense incurred was said to be $0.74 per kilometre or $1,124.80 in total;
b)Mr Butterworth was entitled to fifty-four meals at the rate of $11.68 per meal, being a total of $630.72;
c)Mr Butterworth was entitled to reimbursement of his accommodation expenses, a reasonable amount being said to be $120 per night for eighteen nights or $2,160 in total; and
d)Mr Butterworth was entitled to a travelling allowance for time spent travelling between Albury and Lambton to the extent that it exceeded the time he would have spent travelling from home to his usual place of work, being twenty hours at his ordinary rate of pay of $13.18 per hour or $263.60 in total.
The CEPU alleges that Excelior breached cl.17.1(e) of the Award by failing to pay Mr Butterworth the amounts specified above.
The CEPU alleges that Mr Butterworth suffered loss and damage in the amount of $8,858.40.
Evidence
Sean Butterworth
Mr Butterworth deposed that Excelior is a national provider of training services which offers a number of different traineeships in partnership with Telstra Corporation Limited (“Telstra”).
In November 2009 Mr Butterworth applied for a telecommunications traineeship with Excelior. After an aptitude test and two interviews, one of which was at the Telstra depot in Albury, his application was successful.
On 20 April 2010 Mr Butterworth received an email from Excelior’s traineeship co-ordinator, Jasmin Cuff, setting out the details of his initial training subject to satisfactory police and medical checks. According to that email, Mr Butterworth was to commence training in Lambton for a period of three weeks from 3 to 21 May 2010, followed by further training at the Telstra depot in Mayfield from 24 to 28 May 2010 and concluding with some further training online.
Mr Butterworth deposed that on or about 29 April 2010 he received a letter from Excelior, incorrectly dated 27 February 2010, offering him a traineeship for a Certificate II in Telecommunications, which he accepted. He deposed that at the commencement of his training on 3 May 2010 he entered into a New South Wales (“NSW”) Apprenticeship/Traineeship Training Plan with Excelior.
Mr Butterworth deposed that the only way that he could attend the training sessions was to drive there in his own car. He deposed that on Sunday 2 May 2010 he drove to Newcastle with two other trainees whom he picked up in Wagga Wagga. He deposed that the trip was a ten hour drive, being approximately 760km.
Mr Butterworth deposed that during this first period of training he and the other two trainees shared a flat in Newcastle at a cost of $3,320, which amounted to approximately $50 per person per night. He deposed that they cooked their own meals where possible and also shared the cost of groceries, which he estimated to have been approximately $200 per week. He deposed that, even so, they still had to eat out from time to time and buy their own lunches.
Mr Butterworth deposed that on 22 May 2010 he drove from Lambton to Sydney where he attended further training at the Telstra Learning Academy from 24 to 28 May 2010 (the original location in Mayfield having been changed). He deposed that he received a travelling allowance of $175 per night from Telstra but drove back to Albury on 29 May 2010 at his own expense.
Mr Butterworth deposed that his duties thereafter were generally performed at the Telstra depot in Albury. He deposed that he worked in the field with full-time Telstra employees and was supervised each day by a Telstra mentor.
Mr Butterworth deposed that Excelior directed him to attend further training in Newcastle from 11 to 29 October 2010 and that he borrowed his girlfriend’s car for the journey, having sold his own car to meet the expenses related to his May 2010 training, and travelled to Newcastle on his own. As before, Mr Butterworth stayed in a flat with two other trainees, again paying approximately $50 per night. He also paid for his own meals. Mr Butterworth deposed that although the training was due to conclude on 29 October 2010 he took annual leave and finished on 26 October 2010, returning to Albury by car the following day.
Mr Butterworth agreed that, with respect to each of the May and October 2010 training periods, he was paid $600 gross by Excelior for “classroom recognition” but deposed that he was not otherwise reimbursed for his expenses or paid any travel allowances by Excelior. He deposed that he also received assistance payments from the NSW government under its Vocational Training Assistance Scheme, being $758.64 for the May 2010 training period and $673.80 for the October 2010 training period.
Peter Tighe
Mr Tighe is the National Secretary of the CEPU. His affidavit was addressed to the CEPU’s entitlement to bring these proceedings, a point which Excelior ultimately conceded. Mr Tighe referred to the CEPU’s eligibility rules and deposed that Mr Butterworth was eligible for membership of the CEPU.
Stephen Smith
Mr Smith is the Director – National Workplace Relations for the Australian Industry Group (“Ai Group”), an industrial organisation representing employers in the manufacturing, telecommunications, information technology, construction and automotive industries, amongst others. Mr Smith deposed that the Ai Group was recognised as a peak council under the FWA which, together with its affiliates, represented the interests of approximately 60,000 businesses across Australia.
Mr Smith deposed that he had been employed by the Ai Group for over twenty-two years and had worked in his current role since March 2000.
Mr Smith deposed that the Award’s predecessor, the Telecommunications Services Industry Award 2002, was made by the Australian Industrial Relations Commission (“AIRC”) on 22 November 2002 by consent of the Ai Group, the CEPU and the Community and Public Sector Union (“CPSU”). Mr Smith deposed that the Ai Group, and he personally, were extensively involved in the AIRC’s award modernisation process which occurred between mid-2008 and early 2010 and which resulted in the making of the Award. He further deposed that when the Award was made the national training wage provisions was inadvertently omitted. He deposed that in November 2010, and by consent of the Ai Group, the CEPU and the CPSU, the Award was varied by Fair Work Australia to include Schedule E, that is, the national training wage provisions.
Mr Smith deposed in relation to those provisions that in 2008 during Stage 1 of the award modernisation process the Australian Council of Trade Unions (“ACTU”), the Ai Group and the Australian Chamber of Commerce and Industry jointly developed a modern National Training Wage Schedule based on the National Training Wage Award 2000. It appeared from Mr Smith’s affidavit that during the process of making the schedule an issue arose concerning whether the draft made adequate provision for the remuneration of trainees in respect of the time they spent undertaking training. At the relevant point, the draft did not include a provision similar to cl.E.6.3, which now provides in respect of non-school based trainees that time spent attending training and assessment is to be regarded as time worked for the purposes of calculating the trainee’s wages and determining the trainee’s employment conditions. In July 2009 the Queensland Department of Education and Training submitted that although at that point the schedule provided for a trainee to be absent from work without loss of pay, it did not entitle a trainee to payment for attending training outside normal working hours. The Queensland government submitted that trainees should be paid wages under the schedule even if training occurred outside ordinary working hours and that the time spent training should be recognised for the purpose of the normal hours of work when calculating any other award entitlements, specifically overtime.
Mr Smith deposed that following further submissions from the ACTU and the Queensland government, which were both to the effect that the time trainees spent undertaking training was to be “taken to be time worked for the employer for the purposes of calculating the trainee’s wages and determining employment conditions”, the Full Bench of the AIRC held public consultations on 26 October 2009. He quoted from the transcript of that hearing where, relevantly, discussion was confined to the individuals to be covered by the schedule and whether training might attract penalty rates in particular circumstances. He deposed that the issue of travelling entitlements was not raised by any party during the AIRC proceedings.
Petrina Wetzel
Ms Wetzel is the national manager of Skilled Group Training Services. Ms Wetzel’s evidence in her affidavit affirmed on 29 July 2011 was principally to the effect that Excelior had, from an early point, made it clear to Mr Butterworth that, subject to the support provided by the NSW government and a payment from Excelior of $40 per day, he would have to shoulder the cost of training away from home and that he acknowledged and accepted this.
Submissions
Applicant
Referring to City of Wanneroo v Holmes (1989) 30 IR 362 and Kucks v CSR Ltd (1996) 66 IR 182, the CEPU submitted that the principles applicable to award interpretation were well settled. It identified those principles as:
a)the task of interpreting an award provision starts with a consideration of the natural and ordinary meaning of its words;
b)the words are to be read as a whole and in context;
c)where the terms of an award are clear and unambiguous they should be given effect;
d)the intention of the framers of an award is to be objectively ascertained having regard to the fact that its framers are likely to have been of a “practical bent”; and
e)the subjective intent of one party is irrelevant.
The CEPU submitted that the effect of cls.E.6.4 and E.3.5 of Schedule E was that the Award’s terms and conditions were to apply to trainees except to the extent that they were varied by the schedule and that such a variation was found in cl.E.6.3. In this connection the CEPU submitted that while cl.E.6.2 dealt with what were described as the general matters of wages and continuity, cl.E.6.3 dealt with other things and was a statutory deeming provision which provided for the calculation or determination of trainees’ conditions of employment.
The CEPU submitted that cl.E.6.3 deemed time spent in training to be time worked so that, for the purpose of calculating entitlements under the Award, Schedule E modified the meaning of “work” to include training. The CEPU submitted that by deeming training to be time worked, cl.E.6.3 displaced the common law position identified and considered in Construction, Forestry, Mining & Energy Union (Construction & General Division) v Master Builders Group Training Scheme Inc (2007) 168 IR 164, namely that training is not work.
The CEPU further submitted that because cl.E.6.3 spoke of the time a trainee spent
… in attending any training and assessment specified in, or associated with, the training contract
it governed not only time spent attending training and assessment but also time associated with it. What counsel for the CEPU said was:
So it is the fiction that is created that you regard time spent in attending any training associated with the training contract as time worked for the employer, so when Mr Butterworth goes to Newcastle to undertake his training in Newcastle, that is to be regarded as time worked. It’s not training, and the effect is to oust things like the Master Builders’ argument that training isn’t work.
This seems to have been an argument that time spent “in attending” training was something different from time spent “attending” training and that time spent travelling was time spent “in attending” training which, and by virtue of cl.E.6.3, for the calculation of wages and the determination of employment conditions, was to be regarded as time worked. It also seems to have been an argument that, for the purposes of the Award more generally and cl.17.1(e) in particular, time spent “in attending” training was to be considered to be “work”.
In summary the CEPU’s argument was that:
a)cl.E.6.3 was a definitional provision which, when the issue was the calculation of a trainee’s wages and the determination of his or her employment conditions, modified the meaning of “work” wherever appearing in the Award to include “training”;
b)for the purposes of cl.E.6.3, time “spent by a trainee … in attending any training … ” included not only time spent at training but also time spent engaged in activities necessarily associated with or undertaken in order to attend training; and
c)as cl.17.1(e) extended travel entitlements to time spent and expenses incurred in the course of an employee’s “work” and because training and associated activities were deemed by cl.E.6.3 to be “work”, training and associated activities attracted the entitlements which cl.17.1(e) provided.
On these bases, the CEPU submitted that Mr Butterworth’s training in Lambton was to be treated as work for Excelior and compensable under cl.17.1(e)(i).
The parts of cl.17.1(e)(i) which are relevant to the present discussion are its second and third dot points. The CEPU noted that the first sentence of the second dot point required an employee to be transacting a company’s business before he or she would be entitled to be reimbursed for travelling expenses. The CEPU did not submit that that sentence provided any benefits to Mr Butterworth in the circumstances. However, it was said that the second sentence of the dot point was to be treated differently. The CEPU submitted that the prefatory word “further” at the commencement of the second sentence of the second dot point meant that that sentence was to be read independently of the first sentence, with the consequence that employees sent from their usual locality to stay somewhere else did not have to be sent “to transact company business” in order to be entitled to reimbursement of expenses and payment of travelling time. It was also submitted that a distinction was to be drawn between “work” and “transacting company business” and that for the second dot point to apply to an employee it was sufficient that he or she be sent away to “work”. The CEPU gave as an example a technician being required to travel to Newcastle to install telephone lines, saying that work of that sort would not be characterised as transacting business but it was nevertheless the performance of work and it would not be right to preclude travel entitlements in such circumstances.
The CEPU submitted that cl.17.1(e)(i)’s third dot point dealt with a completely different subject matter. It was said that this dot point engaged cl.E.6.3 and provided payment for trainees’ excess travelling time because, by virtue of cl.E.6.3, training was taken to be work. The CEPU submitted that Mr Butterworth was entitled to be paid for travelling in excess of his normal travelling time.
The CEPU submitted that Mr Butterworth was entitled to recover his reasonable travelling expenses and to be paid his ordinary rate of pay for the time he spent travelling to Lambton, to the extent that it exceeded the time he would normally have spent travelling between his home and his usual place of work.
The CEPU also submitted that even though Schedule E was inserted into the Award on 23 November 2010, the variation was operative from 1 January 2010 and thus applied to Mr Butterworth from the date he was employed, 3 May 2010, until 29 October 2010, the conclusion of his training course at Lambton. The CEPU submitted that s.167(3) of the FWA provides that conduct prior to the date of a variation having retrospective effect does not expose a person to a pecuniary penalty but that, other than for that purpose, the Award and Schedule E had applied at all relevant times. It submitted that the penalty it sought did not relate to Excelior’s conduct prior to 23 November 2010 but to its failure to abide with the conditions of the Award after that date.
Respondent
Referring to Kenoss Contractors Pty Ltd v Warren (2005) 147 IR 390 at 397 [30]-[33], Excelior submitted that the Acts Interpretation Act 1901 governed the interpretation of the Award. Excelior also referred to Pickard v John Heine & Son Ltd (1924) 35 CLR 1 at 9-10 and submitted that in interpreting an award it is appropriate to determine the intention of the award-maker. Excelior submitted in this connection that the evidence showed that at no stage did any of the parties to the Award, or presumably the National Training Wage Schedule, propose the interpretation now propounded by the applicant, that time spent travelling to training would be encompassed by the Award or, presumably, the National Training Wage Schedule. Further in this regard, Excelior referred to the objectives of modern awards as described by s.134 of the FWA which relevantly provides:
134The modern awards objective
What is the modern awards objective?
(1)FWA must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account:
…
(f)the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden; and
…
(h) the likely impact of any exercise of modern award powers on employment growth, inflation and the sustainability, performance and competitiveness of the national economy.
This is the modern awards objective.
It submitted that what the CEPU sought was a windfall benefit which had never been intended to be provided by modern awards.
Excelior further submitted that Schedule E’s retrospective operation strongly supported the position that the award-maker did not intend there to be the kind of costs to employers that would be incurred if the CEPU were successful in these proceedings.
Turning to the interaction of Schedule E and the Award, Excelior submitted that cl.17.1(e)(i) of the Award did not apply to trainees because it was displaced by cl.E.6.3 of Schedule E. It submitted that cl.E.6.3 set out the specific way in which travel for trainees was to be dealt with and, because this was different from what cl.17.1(e)(i) said, it displaced that paragraph of the Award. The difference between the two provisions was said to lie in the fact that cl.E.6.3 referred only to time spent attending training and assessment and not to the time spent travelling to and from that training or to related accommodation expenses. Excelior submitted that cl.E.6.3 was in fact a code which dealt with how trainees’ wages were to be calculated when attending training and assessment.
Turning to the particulars of the present claim, Excelior submitted that the second dot point of cl.17(e)(i) did not apply to Mr Butterworth at all because its operation depended on an employee travelling “to transact company business” and Mr Butterworth’s training did not satisfy that test.
In relation to the third dot point, it was submitted that being “required to work” away from the accustomed workplace or territory was something different from undertaking training and that off-the-job training was not “work”, referring to CFMEU v Master Builders. Excelior also noted the distinction between work and training found in the definition of “training arrangement” in s.12 of the FWA:
training arrangement means a combination of work and training that is subject to a training agreement, or a training contract, that takes effect under a law of a State or Territory relating to the training of employees.
It submitted that by talking of a trainee being released from work to undertake training, cl.E.6.2 also indicated that there was a difference between work and training.
Excelior finally submitted that if the CEPU were successful in these proceedings, it was entitled to offset payments already made, including payments made by the NSW government, against any amount it was found liable to pay Mr Butterworth.
Consideration
Operative date of Schedule E
The first matter to consider is the date from which Schedule E was operative. In this regard, there seemed no dispute between the parties that the schedule had been inadvertently omitted from the Award when it was made and that although the variation to include it in the Award was not made until 23 November 2010, the variation was effective from 1 January 2010 as provided in the 23 November 2010 determination of Vice President Lawler of Fair Work Australia. I agree that Schedule E is to be taken as having been part of the Award from the latter’s operative date of 1 January 2010 and therefore to have governed Mr Butterworth’s training in Lambton.
Interpretation of awards
In Ansett Australia Ltd v Australian Licenced Aircraft Engineers’ Association [2003] FCAFC 209 at [8], the Full Court endorsed the approach to the construction of awards which Madgwick J had taken in Kucks v CSR Ltd at 184. That approach was paraphrased by a different Full Court in United Firefighters’ Union of Australia v Metropolitan Fire and Emergency Services Board (2006) 152 IR 106 in the following terms:
A narrow or pedantic approach is not to be taken. The intention of the framers of the document is to be ascertained objectively, bearing in mind that they are likely to have been people of a practical bent of mind. Their intention may well have been expressed in ways likely to have been understood in the relevant industry, rather than in “legal niceties or jargon.”; see Kucks at 184. (at 114 [52])
Their Honours continued:
Clearly enough, the language of the instrument must be construed in its context, having regard to the subject matter and the wording of the entire agreement; Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518; 46 IR 128 at 134-135. The context will include the statutory context in which the agreement is made. (at 114 [53])
The Acts Interpretation Act relevantly provides:
15AA Interpretation best achieving Act’s purpose or object
In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.
15ABUse of extrinsic material in the interpretation of an Act
(1)Subject to subsection (3), in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:
(a)to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or
(b)to determine the meaning of the provision when:
(i) the provision is ambiguous or obscure; or
(ii) the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable. …
…
46 Construction of instruments
(1)If a provision confers on an authority the power to make an instrument that is neither a legislative instrument for the purposes of the Legislative Instruments Act 2003 nor a rule of court, then:
(a)this Act applies to any instrument so made as if it were an Act and as if each provision of the instrument were a section of an Act …
In Kenoss Contractors Madgwick J held that as awards are “instruments” made by an “authority” pursuant to a power conferred by an Act, s.15AA applied to them. That conclusion is consonant with the statements of Wilcox J in Bell v Gillen Motors Pty Ltd (1989) 24 FCR 77 at 84 that the making of awards and the amendment of awards is a legislative process and of Lee J in Warramunda Village Inc v Pryde (2002) 116 FCR 58 at 61 [5], citing Byrne v Australian AirlinesLtd (1995) 185 CLR 410, that awards are statutory instruments that establish obligations of the parties to an employment relationship to which they apply. In this connection, in Warramunda Village Finkelstein J said:
The rules that a court of construction will apply to determine the meaning that should be given to an award, or to a particular provision of an award, do not differ to any significant extent from the rules that are applied to discover the meaning of any other instrument, be it a statute, a subordinate instrument or a private contract. The task at hand is to discover the intention of the author, although in the case of legislation there is usually reference to the fiction, “the intention of parliament”. Very often the legal meaning of an instrument is its grammatical meaning. Indeed “it is not unduly pedantic to begin with the assumption that words mean what they say”: Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 at 304http://legalonline.thomson.com.au/subscribed/document/cases/lawreports/CLR/volumes/147/pages/297/document.pdf?sessionId=54ea0cdf0ade6d32772c0ca8dc0cf499 per Gibbs CJ. (at 63-64 [25])
In Kenoss Contractors Madgwick J said:
… there is a statutory command that a purposive interpretation of awards is to be preferred. The necessary consequence is that an attempt to deduce such purposes (where it is not explicit) must be made. (at 397 [33])
Enjoinders to ascertain the purpose underlying an award provision assume that more than one interpretation of the provision under consideration is open: R v L (1994) 49 FCR 534. It can only be in circumstances where this is so that it is necessary or appropriate to consider the provision’s underlying purpose and it is erroneous to look at extrinsic materials before exhausting the application of the ordinary rules of statutory interpretation: Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at 265 [33].
The search for the meaning of an award’s provisions is a search for the objective meaning of those provisions, albeit not in a narrow or pedantic way. The intentions of the framers of the award are to be inferred from the terms of the award and its context, not from the expressions of subjective intent which may have been expressed from time to time by participants in the process of the making of the award, in this case the National Training Wage Schedule. Importantly, it is only necessary to consider the purpose of a provision if it is open to more than one interpretation. In this case, the question is whether more than one meaning may be ascribed to cl.E.6.3.
Interaction of Award and Schedule E
Clauses E.6.4 and E.3.5 have been quoted earlier in these reasons at [6]. The effect of cl.E.3.5 is that, where they conflict, the provisions of the Award “dealing with traineeships” prevail over Schedule E while the effect of cl.E.6.4 is that Schedule E prevails over the Award’s other, more general, provisions in their application to trainees.
Clause 17 of the Award, which deals with allowances and is relevantly quoted above at [5], is plainly not a provision “dealing with traineeships”, although it is not impossible that it might have some application to traineeships by reason of other provisions of the Award and its schedules or by the terms of particular traineeship contracts. Because it is not a provision “dealing with traineeships” it operates, as far as trainees are concerned, subject to the terms of Schedule E. Relevantly for this case, this conclusion turns attention to whether cl.E.6 of Schedule E, and in particular cl.E.6.3, may affect how cl.17.1(e)(i) operates in relation to trainees and, if it does, how.
Clause E.6.3 of Schedule E to the Award
The CEPU submitted that the effect of cl.E.6.3 is to deem training to be work with the consequence that where “work” appears in cl.17.1(e)(i) it is to comprehend training whereas Excelior submitted that cl.E.6.3 deems time in training to be time at work. The issue which those arguments present for decision is whether cl.E.6.3 is concerned with the performance of an activity, and how it is to be recognised for the purposes of wages and employment conditions, or with the passing of time and how that is to be recognised for the purposes of wages and employment conditions. Clause E.6.3 says that the time spent by a trainee in attending training “is to be regarded as time worked for the employer”. In my view the ordinary meaning of those words is that time spent doing one thing is deemed to be time spent doing something else, the one thing being training and the other thing being work. The words cl.E.6.3 uses indicate that it is concerned with the passage of time and how time is to be treated when calculating wages and determining employment conditions.
This understanding is confirmed by the context in which that sub-clause, and indeed cl.E.6.2 as well, was included in the National Training Wage Schedule. The evidence indicates that the same context applies to the National Training Wage Schedule’s incorporation into the Award as Schedule E. That context was the distinction which the law draws between the time a trainee spends at work and the time that he or she spends in training. As discussed in CFMEU v Master Builders, apprenticeship and training arrangements have two components: work and training. In fact, cl.E.6.2 of the schedule is very similar to cl.39.2.4(b) of the award considered by the Full Court of the Federal Court in CFMEU v Master Builders and which was cited by the Full Court in that case as indicating that the award considered there distinguished between work and off-the-job training. Clause E.5 provides for the remuneration of trainees in respect of the time they spend at work but in the absence of provisions such as cls.E.6.2 and E.6.3, a trainee would not be paid for time spent in training.
Seen in this context, cl.E.6.3 is properly understood as dealing with the remuneration of trainees for the time they spend in training and with the establishment of a mechanism to effect this. For this reason, the sub-clause’s concern is with the time engaged in training and, apart from requiring that the activity which might attract remuneration be training, it is not concerned with the classification of that activity. For instance, it does not say that the training attended by a trainee is to be regarded as work undertaken for the employer.
Further, read in the context of cl.E.6 being concerned with time and with how trainees are to be remunerated for the time they spend in training, the reference to “employment conditions” in cl.E.6.3 should be understood to be a reference to conditions which depend on the calculation of “time worked”, in circumstances where work has not actually been performed but is deemed to have been performed, and not on the classification of the activity for which the trainee is being remunerated.
By deeming time spent in training to be time worked and by not deeming training to be work, cl.E.6.3 recognises and maintains the distinction between training and work considered in CFMEU v Master Builders. Therefore, it has nothing to say about how the word “work” is to be construed where it appears elsewhere in the Award.
For these reasons, cl.E.6.3 of Schedule E does not alter the meaning of “work” where it appears in cl.17.1(e)(i) such that it comprehends training. Consequently, while cl.17.1(e)(i) may apply to work performed by trainees in a location distant from their home, it does not apply to training in a distant location.
Because the meaning of cl.E.6.3, at least to the extent that it is concerned with time and does not deem training to be work, emerges from the ordinary meaning of the words it employs, it is not necessary to refer to extrinsic materials or to the purpose of the sub-clause in order to determine what it relevantly means. However, in light of the importance which the parties’ submissions placed on those matters, they will be considered.
The relevant evidence before the Court was contained in Mr Smith’s affidavit. It provided background both to the making of the National Training Wage Schedule and also to that schedule’s subsequent incorporation into the Award as Schedule E. The parties did not take the Court to any reasons expressed by the AIRC which shed light on the meaning or purpose of the National Training Wage Schedule or, in particular, to why what is cl.E.6.3 in Schedule E to the Award is worded as it is. However, in relation to the original making of the National Training Wage Schedule, the parties’ submissions and the passages of the transcript of the hearing before the AIRC set out in Mr Smith’s affidavit provide adequate insight into these matters. The parties’ submissions and the transcript of the 2010 proceedings before Lawler VP annexed to Mr Smith’s affidavit perform the same function in relation to the Award’s late inclusion of the schedule.
In relation to the development of the National Training Wage Schedule, the submissions which the ACTU and the Queensland government made to the AIRC disclose that the issue before the AIRC was whether a trainee would be remunerated for time spent in training if the training occurred at a time when the trainee would not otherwise be at work.
A provision very similar to cl.E.6.2 was contained in a working draft of the schedule and the Queensland government submitted that it did not provide for trainees to be remunerated unless their training occurred on an ordinary work day. The Queensland government submitted that time spent in training, whenever that occurred, ought to be taken into account when calculating award entitlements. It was recognised that this might, for instance, have the effect that on a particular day the total time at work and training would entitle a trainee to be paid overtime. The ACTU supported the Queensland government’s proposal while suggesting a form of words different to the one the latter had proposed.
The concern that trainees would not be paid for training except during work hours reflected the fact, as discussed in CFMEU v Master Builders, that apprenticeship and training arrangements are made up of work and training. It is apparent from the ACTU and Queensland government’s submissions to the AIRC that those parties’ concern was that time spent in training should be paid time and that training was to be treated, for wages and conditions purposes, as time spent at work. As the ACTU put it in its submissions:
The purpose of this clause is really to ensure that the 20 per cent of time of the worked time that it is anticipated a trainee be spent in training is actually provided to the trainee, and if it’s not and the trainee is required to undertake their training over and beyond the 38 hour week then that is recognised as work time and treated as work time as the award requires it to be so treated.
Fair Work Australia’s subsequent incorporation of the National Training Wage Schedule into the Award involved the entirety of the schedule and not just cl.E.6.3. In his reasons for decision dated 23 November 2010, Lawler VP stated that the National Training Wage Schedule ought to be included in the Award “as an integral part of a proper safety net for the telecommunications services industry”. Nothing in the Vice President’s reasons, or indeed in the parties’ written submissions to Fair Work Australia and exchanges with Lawler VP at a hearing on 22 November 2010, suggested that the context relevant to the inclusion of the National Training Wage Schedule in the Award was any different to the one in which the schedule had been developed in the first place.
The extrinsic material demonstrates that the National Training Wage Schedule’s incorporation of what is cl.E.6.3 in Schedule E to the Award (“cl.6.3”) came about because of the perceived inadequacies of the clause which is cl.E.6.2 in Schedule E to the Award (“cl.6.2”). The latter, without on any reasonable interpretation attempting to classify training as work, provided that in limited circumstances training would be remunerated. However, because that sub-clause did not deal comprehensively with the issue, cl.6.3 was introduced to do this. That is to say, the purpose of cl.6.3 was to expand the circumstances in which training would be remunerated beyond those referred to in cl.6.2.
Both the extrinsic material referred to and the purpose of cl.6.3 which that material reveals demonstrate that cl.6.3 was concerned that time spent on training be remunerated, not that training be deemed to be work which might, on that account, attract remuneration and entitlements. The extrinsic material and the identified purpose of cl.6.3 therefore confirm that the meaning to be ascribed to cl.E.6.3 is the ordinary meaning of its words, namely that time spent in training is deemed to be time worked, not that training is deemed to be work.
Should I be incorrect in my conclusion that cl.E.6.3 does not, in relation to trainees, modify the meaning of “work” in the Award to include training, it is necessary at this point to consider the CEPU’s additional argument that time spent engaged in activities necessarily associated with or undertaken in order to attend training, such as travel, are things associated with training and, by virtue of cl.E.6.3, to be considered to be training. The relevant portion of cl.E.6.3 is
Time spent by a trainee … in attending any training and assessment specified in, or associated with, the training contract is to be regarded as time worked …
The commas around “or associated with” taken together with the word “or” indicate that the words “associated with” are used to supplement the words which precede them, “specified in” and to qualify the nouns which are also qualified by “specified in”, namely “training and assessment”. The relevant meaning of the sub-clause is that time will be regarded as time worked if it is spent by a trainee in attending training or assessment specified in his or her training contract or in attending training or assessment associated with his or her training contract.
There is no grammatical association between “associated with” and “Time spent” and so the latter is not modified by the former. The sub-clause does not mean that time will be regarded as time worked if it is associated with his or her training contract, even assuming that time, rather than an activity, can be associated with a training contract in any way relevant to the present proceedings.
The CEPU also appeared to argue that travelling time was time spent “in attending” training or assessment. Such an argument would rely on the activity of spending time “in attending” something being different from the activity of spending time “attending” something. There is no clear grammatical answer to this question. For instance, the Shorter Oxford English Dictionary (6th ed.) relevantly defines “in” as:
12. Exp[ressive of] occupation in an activity: in the process of, in the act of
and the Macquarie Dictionary (5th ed.) relevantly defines “in” as
3.situation, condition, occupation, action, manner, relation, means.
In Williams v Amalgamated Anthracite Collieries, Ltd (1932) 25 BWCC 634 Lord Hanworth MR said:
We are asked to interpret the words “in or incidental to.” I do not propose at all to give a final and definite interpretation to those words, but I will say this, that at first sight it would seem that the word “in” related to something which was done in the course of, and the word “incidental” to something which was done ancillary to, the processes mentioned. (at 637, Slesser and Romer LJJ agreeing)
It therefore appears that the word “in” adds nothing to the word “attending” and does not expand the operation of cl.E.6.3 to activities beyond actual attendance at training or assessment. However, given that the schedule should not be pedantically construed or understood by reference to “legal niceties”, it must be acknowledged that the word “in” may have been intended to import additional meaning to the word “attending”. To clarify this potential ambiguity it is appropriate to refer again to the submissions made to the AIRC.
In the AIRC proceedings leading to the making of the National Training Wage Schedule, the parties’ submissions did not refer to time spent “in attending” training but rather to time spent “undertaking” training. “Undertaking” did not, in the circumstances, mean anything more than participating in the training and did not extend to activities which were not part of the training process. As quoted in Mr Smith’s affidavit, “undertaking” was also the word used in the relevant exchanges between the AIRC and the parties’ representatives at the public consultations on the schedule on 26 October 2009. However, when the final form of the schedule was published, the AIRC had replaced the word “undertaking” with the words “in attending”.
It was not suggested by the parties to these proceedings that any relevant passages from the transcript of proceedings before the AIRC had been omitted from Mr Smith’s affidavit. From this I infer that at no point prior to the making of the schedule did the AIRC foreshadow to the parties that it was considering employing a form of words different from the one which had been used until then. That leads me to the further conclusion that the AIRC did not understand or intend that “in attending” would mean something more than “undertaking” but preferred it as a form of words which better and more precisely than “undertaking” reflected the purpose of cl.E.6.3, which is the quantification and remuneration of time engaged in training. Time spent in attending training is more easily quantified and verified than time undertaking training, which could include private study.
Contrary to the CEPU’s submissions, cl.E.6.3 does not extend to activities which are not part of the training process, such as the time spent travelling to training. Consequently, even if cl.E.6.3 did, in relation to trainees, modify the meaning of “work” in the Award to include training, as “training” does not include time spent engaged in activities necessarily associated with or undertaken in order to attend training, such as travel, cl.17.1(e)(i) of the Award would not provide any entitlements in respect of them.
The remaining argument to consider is Excelior’s submission that cl.E.6.3 has an exclusive or codifying operation in relation to trainees’ travel entitlements. This partially reflects my conclusion above at [53] that cl.17 of the Award operates subject to the terms of Schedule E. To that extent Excelior’s argument is correct. However, the argument goes beyond that to say that because cl.E.6.3 refers only to time spent attending training and assessment and says nothing about travel it not only does not provide trainees with travel entitlements but also excludes the possibility that the Award might. To that extent the argument is not correct. The sub-clause does not go so far; its operation is limited to extending wages and related entitlements to trainees for the time spent in training and assessment, which is treated for that purpose as it if were time worked. It does not purport to say anything about travel entitlements. Rather than positively excluding trainees from training-related travel entitlements, by not deeming training to be work it simply fails to cause training to be treated as if it were work and thereby the source of benefits other than those found in the schedule or specifically provided to trainees in the Award.
Finally, to the extent that Excelior suggested that cl.E.6.3 would also exclude the availability of travel entitlements to trainees who had to travel for work, which was an implication in its broad submission that cl.E.6.3 sets out the specific way in which travel for trainees is to be handled, in light of reasons given earlier it seems unlikely that this is correct. However, that is not an issue which needs to be resolved in these proceedings.
Clause 17.1(e)(i) of the Award
The CEPU’s case was based principally on how cl.17.1(e)(i) of the Award would operate if “work” were defined to include training, a proposition which has been rejected. However, the possibility that that paragraph might nevertheless apply to Mr Butterworth’s circumstances is a matter which must be considered.
It appears to have been accepted by the parties that the first sentence of the second dot point of cl.17.1(e)(i), which concerns an employee travelling to transact company business, does not apply in this case even if training were deemed to be work. This was appropriate. The ordinary meaning of “transact” indicates that it does not include training. The Macquarie Dictionary (5th ed) defines “transact” as meaning:
1. to carry through (affairs, business, negotiations, etc.) to a conclusion or settlement. 2. to perform. 3. to carry through affairs or negotiations.
In the context of the Award, it may be inappropriate to limit “transact” in this way but it is not necessary to consider that issue further for the purposes of this matter. However “transact” is best defined for the purposes of the Award, in most cases a trainee undertaking training will not be involved in business activities for the employer and so he or she will not be entitled, by virtue of cl.17.1(e)(i), to be paid travelling time and expenses. That was the case here, where Mr Butterworth was engaged only in training.
The second sentence of the second dot point of cl.17.1(e)(i) concerns an employee having to stay away from home. The CEPU submitted that this sentence was independent of the dot point’s first sentence and that in order to be entitled to be paid expenses an employee did not need to be engaged in business, just be away from home. Contrary to this submission the manner in which the dot point is drafted indicates that the preferable construction is that the entitlements provided by the second sentence are supplementary to the entitlements provided by the first sentence. The juxtapositioning of the two sentences and what they provide points to this: the first sentence provides compensation for travelling for work purposes and the second sentence provides compensation for staying away from home for work purposes. They are complementary provisions and should be read together. So understood, the second sentence of the second dot point has no application to trainees who undertake training away from home.
The CEPU submitted in relation to the third dot point that it provided travel entitlements to employees who were away from home but not transacting business. However, the first sentence of the dot point:
· An employee is not entitled to be paid for travelling in the employee’s accustomed workplace or territory …
is plainly a limitation on the travel expenses which would otherwise be provided by the other parts of cl.17.1(e)(i), rather than the introduction to a provision giving further entitlements. The second dot point of cl.17.1(e)(i) performs the function of providing for travel, accommodation and other expenses as well as payment for travel time; nothing more of this sort is required of the third dot point. Rather, it qualifies and explains the entitlements which the second dot point provides. In particular, it states that payments for travelling time, which are provided for in the second dot point, are to be based only on the travelling time which exceeds the time which the employee would normally take to travel from home to work. It does not provide an independent source of travel allowances or compensation for travel expenses.
The travel which Mr Butterworth undertook was for the purposes of training and, as already observed, work and training are distinct matters. As cl.17.1(e)(i) is concerned only with travel for work it did not apply to Mr Butterworth’s training in Lambton.
Conclusion
The CEPU has not demonstrated that the Award operated to provide Mr Butterworth with reimbursement of travel expenses or payment for time spent travelling.
Consequently, the application will be dismissed.
I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 18 July 2012
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